Hall v. St. Louis & S. Ry. Co.

• Decision Date: 30 April 1907
• Citation: 101 S.W. 1137,124 Mo. App. 661
• Court: Missouri Court of Appeals
• Parties: HALL et al. v. ST. LOUIS & S. RY. CO.

101 S.W. 1137

124 Mo. A. 661

HALL et al. v. ST. LOUIS & S. RY. CO.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

Rehearing Denied May 14, 1907.

1. JUSTICES OF THE PEACE — PLEADING — AIDER BY VERDICT — DEFECTS IN PETITION.

Under Rev. St. 1899, § 3852 [Ann. St. 1906, p. 2135], providing that no formal pleadings shall be required in a justice's court, but that plaintiff shall file a statement of the facts constituting the cause of action, a statement in an action in justice's court against a street railway company for injuries to a vehicle in a collision with a car, alleging that the company was indebted to plaintiff for damages sustained by reason of a collision on a specified date and place in breaking a vehicle for a certain amount, sufficiently charges that the damage was negligently inflicted by the company as against an objection raised for the first time by motion in arrest of judgment.

2. STREET RAILROADS — COLLISIONS — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

One driving across a street car track at a time when an approaching car is 350 feet away is not as a matter of law guilty of contributory negligence, though the paving between the track rails and adjacent thereto had been removed, leaving a space about six inches deep for the vehicle, an ordinary carriage, to pass over.

3. SAME — NEGLIGENCE — QUESTION FOR JURY.

Whether, in an action against a street railway company for damages to a vehicle in a collision with a car, the motorman in charge of the car kept a vigilant watch for the driver and vehicle, and at the first appearance of danger exercised ordinary care to check the speed of the car and avert the collision, held, under the evidence, for the jury.

4. SAME.

In an action against a street railway company for damages to a vehicle in a collision with a car, several witnesses testified that the car was operated on the company's tracks, that it was the same color as its cars, and bore its name painted on one side thereof. Held, that the issue whether the company was operating the car was for the jury.

5. EVIDENCE — OPINION EVIDENCE — COMPETENCY OF WITNESSES.

A nonexpert witness possessing the usual knowledge of time and distance is competent to give his opinion of the speed of a street car.

6. TRIAL — REQUESTS FOR INSTRUCTIONS — STATUTES.

Rev. St. 1899, § 748 [Ann. St. 1906, p. 733], providing that either party "may" move the court to instruct and the court "may" of its own motion give instructions, does not require the court to give instructions in a civil action where no instructions are requested.

Appeal from St. Louis Circuit Court, O'Neill Ryan, Judge.

Action by D. H. Hall and another against the St. Louis & Suburban Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Jefferson Chandler and J. Lionberger Davis, for appellant. R. M. Nichols, for respondents.

NORTONI, J.

The suit is for damages to plaintiff's carriage occasioned by the defendant's street car colliding with the same. It originated before a justice of the peace, and found its way into the circuit court, where it was tried and a recovery had by plaintiff upon the following statement: "St. Louis & Suburban Ry. Co. to D. H. Hall, Dr. To damages sustained by reason of collision on 22nd of May, near Compton avenue and Franklin avenue, in breaking carriage and other damages sustained in collision car 339 of St. Louis & Suburban Road, $135.00." The evidence on the part of plaintiff tended to prove that about 1 o'clock in the morning of the day mentioned a team and carriage of plaintiff was being driven by a driver in her employ east along the south side of Franklin avenue, a public thoroughfare of the city of St. Louis, on which defendant maintained and operated a street railroad. The defendant, having been engaged in repairing its tracks, had so excavated the street, removed the paving, and placed débris therein that, when the carriage came near the crossing at Compton avenue, its further progress was interrupted on the south side of the street thereby, and the driver directed the team and conveyance to the northeast with the intention of crossing defendant's tracks to the north side of the street, which was clear and open for travel. Defendant, having excavated the street by removing the paving stones between the rails, rendered it somewhat difficult, although not dangerous, to cross, by the exercise of ordinary care in that behalf. At the time the driver attempted to cross the tracks a street car was seen approaching from the east 350 feet distant. There were lights at the Compton avenue crossing and thereabout, enabling the carriage to be seen for 800 or 900 feet, so it is said. While the driver was exercising due care in crossing, the progress of the carriage, in jolting over the rails because of the excavation in the center of the track and outside adjacent thereto, became impeded, and the wheels slipped along the rail, causing, as said by one of the witnesses, "a bad sound when it hit the track." The team became almost, if not quite, stalled, so that it moved slowly, and, as said by another witness, the carriage did not continually move forward, "it was kind of caught occasionally, and it took jabbing motions of his team to pull it out." While in this position, the car approached it at a rate of speed from 35 to 40 miles an hour, colliding with the carriage, whereby it was injured and damaged, to the plaintiff's loss in the sum of $135. Plaintiff also introduced an ordinance of the city of St. Louis, known as the "vigilant watch" ordinance, which provides that the motorman shall keep a vigilant watch for persons on or near the tracks, and stop his car upon the first appearance of danger. Several witnesses testified on behalf of plaintiff to the effect that the car which did the damage was painted yellow, and defendant at that time operated yellow cars on its road. This car was operated on the tracks of defendant company, and on the side of the car was painted the name of this defendant company. Defendant denied that it either owned or operated the car, and both its treasurer and its painter gave evidence to the effect that the car was owned and operated at the time by the St. Louis & Meramec River Railway Company, which company also operated some yellow cars. No instructions were requested or given on behalf of plaintiff. At the defendant's request, on the question of liability, the court charged the jury as follows: `The court instructs the jury that if they believe from the evidence that the motorman of the car in question was in the employ of the St. Louis & Meramec River Railroad Company, and not in the employ of the St. Louis & Suburban Railway Company, and that the car mentioned in plaintiff's evidence was a car owned and operated by the St. Louis & Meramec River Railroad Company, then your verdict must be for the defendant. The court instructs the jury that in a case of this kind there is no presumption of negligence because the plaintiff's property was injured in the collision with a car; but, before the plaintiff can recover, he must prove that the defendant was guilty of negligence directly causing such injury. Even then the plaintiff is not entitled to recover if it appears from the evidence that his agent, in charge of the carriage, was not using ordinary care at the time of the collision to prevent any injuries sustained, and that as a direct result the injuries were sustained. The court instructs the jury that although they may believe and find from the evidence that the plaintiff's driver on the occasion in question before going upon or near the track upon which the collision occurred looked and listened for approaching cars, yet if the jury further believe and find from the evidence that the said driver when he so looked and listened saw a car approaching in a westerly direction on said track in dangerous or close proximity to him, or might have seen said car by exercising ordinary care in so looking and listening, but, notwithstanding, negligently attempted to cross in front of said approaching car, then the jury are instructed that such conduct on the part of plaintiff's driver was negligence, and their verdict must be for the defendant. The court instructs the jury that if they believe from the evidence in this case that plaintiff's agent, servant, and driver, in charge of plaintiff's carriage, negligently or carelessly took chances to cross the tracks in front of the car mentioned in plaintiff's petition, and the carriage was...